If you think a loved one is being abused in a nursing home, most people’s immediate instinct is to act quickly and hold the nursing home accountable. However, courts and agencies that govern nursing homes cannot give a facility a citation, force a nursing home to pay damages or charge someone with a crime based on a hunch. You’ll need to prove that your loved one is being abused in order to take action against the responsible parties.
Proving nursing home abuse can be a challenging and confusing endeavor. First, victims may not be able to clearly communicate what they’ve experienced. When dozens of staff have access to your loved one, it can also be difficult to identify who is engaging in the abuse. Finally, no nursing home wants to admit that their staff has abused residents. They are incentivized to protect their reputation and may try desperately to cover their tracks.
These obstacles might make it challenging to prove abuse, but with some tenacity and careful record keeping, you can gather evidence to demonstrate abuse against your loved one.
Gathering Evidence to Prove Elder Abuse
Proving elder abuse largely boils down to finding enough evidence to demonstrate that it occurred. It is crucial to keep a record of what you observe to identify patterns and timelines, which can help you prove any legal claim you choose to pursue.
The most important things you can do to prove elder abuse include:
Record Your Observations: Maintain a personal log of anything you witness or observe in your loved one that may be related to abuse. This might include:
- Injuries such as bruises, cuts and burns
- Progression of existing conditions
- New medical issues
- Frequent infections or illnesses
- Changes in mood and signs of depression
- Weight loss
- Hunger and dehydration
- Your and your loved one’s interactions with staff
- Use of physical restraints or sedatives
- Unusual comments by your loved one that seem to point to abuse
- The level of cleanliness in you loved one’s room
- Whether your loved one is bathed and in fresh clothing
Be sure to track dates and times along with your observations. Dates are crucial to demonstrate an ongoing pattern of abuse and meet reporting and statute of limitations requirements.
Take Photos: Along with written observations, gather visual evidence of injuries, weight loss, medical issues, use of restraints and cleanliness (or a lack thereof). Take photos from multiple angles and across several days. For example, having several photos of a bedsore to show its progression is often more useful than a written description alone.
Ask the Victim to Describe Their Experience: If your loved one is able to describe possible abuse, ask them questions about it, or have them write or dictate their experience to you. If they cannot describe abuse coherently, they might still make offhand comments that may be related to abuse. For example, note if they have a deep dislike of a certain staff member.
Gather Witness Statements: If you think your loved one is being abused at their nursing home, they are likely not the only one. Ask around and see if any other residents or family members can verify what you’ve observed or comment on what they’ve seen firsthand. Some employees may also be willing to speak with you or file a report themselves.
Preserve Financial Records: If you believe your loved one is being abused financially, be sure to maintain all related financial records. This can include:
- Bank and credit card statements
- Checkbook records
- Records of unusual purchases or financial activity
- Dates when your loved one changed their will or made significant changes to their assets
- Financial documents that were signed in your loved one’s name
Request Medical Records and Nursing Home Documentation: Nursing homes are obligated to document your loved one’s injuries and medical history in their medical record. If they participate in Medicare/Medicaid, they are also obligated to report certain information to the federal government. Your loved one has the legal right to request their own medical records. You may also be able to access them if you have power of attorney or submit a request as a personal representative. Although nursing homes may try to make it difficult to access these records, know the law is on your side: nursing homes can face serious penalties if they do not turn over records for properly submitted requests
Once you have medical records, review them carefully for any discrepancies or inconsistencies, and compare them to the observations you have made. These records can reveal unnecessary treatments, injuries with no explanation, and treatments for bedsores, dehydration and other conditions that may signal negligent care.
Additionally, your loved one’s medical chart should include information about staff-to-resident ratios, injury reports and the people working at the time. This can help you pinpoint who is potentially abusing your loved one.
Request State Inspection History: Every state requires that nursing homes be inspected by some governing body, whether it’s the state health department or a department of senior services. Facilities that participate in Medicare/Medicaid must also be inspected by The Centers for Medicare & Medicaid Services. These agencies inspect nursing homes for safety, cleanliness, resident care and staff turnover.
You may be able to request these records, which will show any citations or penalties the facility has received. This can help demonstrate a pattern or history of abusive staff.
Request Ombudsman Complaints: Every state also has a nursing home ombudsman program that investigates claims of elder abuse and maintains a detailed record of abuse claims. Similar to state inspection agencies, you can request these records to see how many complaints have been filed and how they were resolved. Frequent allegations of negligence or abuse can help you prove your case.
Reporting Elder Abuse or Filing a Legal Claim
In addition to gathering evidence of abuse, it is important to verify that you meet any minimum requirements if you plan to file a report or legal claim. Every state has its own legal statutes related to elder abuse, but virtually all of them require that you demonstrate:
- That your loved one is an elder above a certain age (usually 65 or 70); and
- That someone willfully or recklessly harmed your loved one; or
- That someone willfully or recklessly put your loved one in harm’s way.
Additionally, there are various timelines and statutes of limitations that may apply to your case. Reports of abuse typically must be filed with the proper agency within a certain period after the incident. These timelines and requirements can be complicated, so it may be beneficial to work with an elder abuse lawyer who understands the process.
You may have a strong suspicion or gut feeling that a loved one is being abused, but you must have hard evidence to file a successful report or lawsuit. These tips, and the assistance of a skilled elder abuse attorney, can help you create the strongest case possible to prove elder abuse.
Contact a Nursing Home Abuse Lawyer
An experienced nursing home abuse lawyer can provide a wealth of resources to help you protect your loved one and determine whether to file a nursing home abuse lawsuit. Since 1993, Garcia & Artigliere have been protecting our most vulnerable by being leaders in elder and nursing home abuse litigation. Garcia & Artigliere have obtained more than $3 billion in results for its clients. Contact us today for more information at 800-281-8515.
Stephen M. Garcia represents victims of elder and nursing home abuse and is known as one of the leading civil litigators in the country. He is Senior Partner at Garcia & Artigliere, where the firm’s practice is focused on elder abuse, nursing home abuse, and wrongful death of the elderly.
Find out more about Stephen M. Garcia